Posted
by
timothyon Saturday July 31, 2004 @08:18PM
from the overstated-or-simply-prudent dept.

J ROC writes "Techweb has a story about the German city of Munich's Windows-to-Linux migration. It appears the move to replace 14,000 Windows desktops with Linux has hit a bump. Green Party alderman Jens Muehlhaus, who is a supporter of open-source software, has petitioned the mayor to examine the status of software patents in the European Community. The issue involves a proposed directive on software patents that is being considered by various European governments. Muehlhaus fears that a patent owner could issue a cease-and-desist order against Munich, thus hurting the operation of various city departments."

I don't see how this is specific to OSS. After all, the same could be true about any software, Free, free, commercial, open, closed, in-house, public domain, etc... There are so many patents, many of them vague, out there, and no company or government(not even those departments dealing with patents) knows them all. Combine this with the fact that every line of source code could violate multiple patents given the simplicity of patents, and the combination of certain lines of code could also violate patents while each line by itself doesn't. So to check a program of size n against a patent database of size m is takes at least O(2^n m) of human resources. No one can supply this much time for any realistic software. Hence, we can never be sure that software we use doesn't violate any patents.

Clearly, whatever platform they are currently using faces the same problem, so unless they have identified a specific problem, this should not affect the migration.

I don't see how this is specific to OSS. After all, the same could be true about any software

The difference is that OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter - everything is in the open is OSS by its very nature. Closed-source may operate for years with no one being the smarter that multiple patents are being violated.

OSS doesn't have the luxury that closed-source does of being able to hide its kitty litter

That, and the bit where if you buy closed-source software, and it turns out to have some form of dodgy encumberance, then there is someone to.. ah.. how-you-Americans-say-in-your-language?..ah-yes... point the lawyers at. You generally don't get left holding the bag all on your own.

As the saying goes, if OSS software breaks, you get to keep both pieces (however in this context, the patent holder may well like to have his piece back:-(

MS lost a Patent infringement suit recently, and everyone that was using the software was stuck with the bill with no redress whatsoever. Simply put, you have absolutely no guarantees with Patents that you're protected whatever your path.

It's why software Patents are such a bad idea in the big picture sense (I can see the legitimacy of some of them, but pretty much all but a few of them should never have been granted...)- and they're granted for some of the silliest damn things.

I think that you're missing the point. The worry is not that the company *selling* the software might lose a patent infringement case; it's that with open source, one could argue that the *user* should have found the patent infringing code. No one can make that argument with closed source code, as the user can't tell. With open source, the user could look. Since open source users can have deeper pockets than sellers necessarily do, they are a more natural target.

We're talking about software *patents* here, not copyright. The lines of source code don't matter in a patent case. If your software does something which is patented, then you are infringing on the patent no matter how it's implemented. No-one can hide from the patent lawyers, because it's the end result of running the code, not the way the code is written.

Not exactly. For example, imagine that a company sells a program; one copy of this program can send a BMP picture to another copy of the same program over the network. And the pictures, while in transit, are compressed into patented GIFs (let's assume that GIF is still patented), and encrypted too.

To find out that the GIF patent is used in the program without paying royalties one has to either see the source code, or to crack the encryption. In either case it is not trivial, and can not happen accidentally, just because someone was searching on Google, for example. The company can use the patent for free and get away with it.

The OSS has all the code available, and the use of GIF would become obvious and instantly searchable. As big companies amass more and more patents on everything under the sun, OSS will be more and more vulnerable; for sure, all the new things will be locked out of OSS since they will be heavily patented. I am sure MS learned their lesson with SMB, and whatever they are putting into new designs will be both patented and encrypted.

I think the way in which the article was submitted to Slashdot is good (i.e. the "department" Timothy put it in and the submitter characterizing the issue as "a bump".

Unfortunately, the article's body is a bit less objective and states the project "was placed in jeopardy". Not that I understand much about German law, but it seems to me as if the Green Party is simply making sure that eveything is being contemplated. Notice that both alderman Muehlhaus and Mueller, the Party's spokesman, are pro-open source.

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

So, to address more directly your question: it is not about a particular patent causing problems, it is about being warned that the situation may eventually arise.

I think this is in fact good for the project. This goes to show that the patents issue (worldwide, not only in Europe) is becoming a growing concern for more and more sectors. Seeing that they are being careful about this actually makes me think they remain very serious about seeing this project get finished well.

That's an excellant point. This isn't necessarily a bad thing for Open Source. In fact, as things stand, it sounds like it's in Munich's best interest to press for an anti-patent answer from the EU. And as the parent notes, the two named individuals are pro-source.

After reading this article, I was wondering whether it would be possible for Open Source API developers to place a clause in the license agreement prohibiting patents placed on software that use their API?

After all, if you create an API that is built from modular blocks with the expectation that users will use these to build more complex systems, a third party developer can't really file a patent on a particular combination of such blocks, as you could always implement a single block that performed such a

I was wondering whether it would be possible for Open Source API developers to place a clause in the license agreement prohibiting patents placed on software that use their API?

It would be possible, certainly, but I don't think it would be a good idea. Consider: the Oracle RDBMS runs on Linux. It needs to make calls to the Linux kernel API. Presumably, the Oracle corporation holds at least a few patents relating to their database system. If the kernel API is covered by a licence that forbids patented so

Yes, excellent point, and maybe the various cities and organisations within Europe that have adopted, or are thinking about adopting, Linux or any other open source software should get together on this and jointly lobby the EU politicians.

The continuing protests against the possible introduction of software patents need coordinating by experts in the field of politics, which most of the interested parties, at least on the developers side, are not.

But, given that the only concern mentioned is patents (not copyright, not QA, not security or anything else, be it FUD or legitimate concern), I thought maybe that there was something in particular that may be worth knowing about.

A few days ago, we had a post from the person from the Stargate website, asking for donations. Common sense would dictate that perhaps a more objective source than one of the parties involved in the litigation... oh well.

Today there was a Mozilla vulnerability thing and I clicked on the "proof of concept" and my X server almost locked up and I had to ssh in from another machine to kill it. "As if" someone wouldn't notice there was something wrong.

I agree.
In fact, as the Eolas case has showed us, Microsoft was ready to make significant changes to IE.
If Munich (or anyone) was depending on the way IE worked with plugins would find he would have to redo everything.
All because of a stupid patent.

A worst scenario (one more probable to have an impact on Munich) is not to difficult to imagine.
I don't see how they are more protected with MS (or any corporation) against patents.

On, and once again I'd like to state the need for a third-party source-code auditing service that the large auditing company could provide to make sure that software (both open source and commercial) doesn't infringe on other people's copyrights and patents.

It's concerning to me how many people may be using illegal software from closed souorce vendors who stole source code from other projects. I would hate to build a business on a software package only to later have the vendor discontinue support because he got caught for having illegally stolen copyrighted software and incorporated it in his work.

With open source, I can feel pretty safe - based on the many eyes who see the check-in comments, someone would complain if they saw their stolen code. With proprietary software, I probably wouldn't even have a way of knowing until my vendor gets shut down.

I hope Munich carefully audits all of Microsoft's source code before deploying it as well.

You have reached the heart of the problem, but have it backwards because you don't understand how the law works. If Microsoft infringes upon someone else's patent then _Microsoft_ is responsible for satisfying the patent holder and for providing the same or equivalent product to the customer. If some bozo check in some Linux code that is later found to violate a patent then the city of Munich is responsible (because they have no indemnification from the software provider.) Notice the difference?

As much as it may suck, this is one of the things which you get when you actually pay for your software. Perhaps it is the only thing of value, but in the biz world it is important to have these uncertainties taken care of (especially when you are a deep-pocket target for various bottom-feeders...er, make that fine, upstanding members of the legal professsion...)

Tell that to Cognos, who lost the lawsuit with Timeline eventhough it was Microsoft that had the infringing code.

What you say aobut the vendor being responsible would only be true if the infringing vendor had sublicing rights. In Microsoft's case, they didn't:
for more info... [winnetmag.com]

Microsoft originally licensed the patents with the understanding that it would be able to sublicense the patents to their customers and to third party software developers who use Microsoft software and tools. Microsoft intended to provide this sublicense to its customers for free to ensure that the patent claims didn't directly affect customers. Microsoft sources told me that for this privilege, the company paid substantially more than other vendors for its license, although the exact figure isn't public. Microsoft filed suit against Timeline shortly after signing the license agreement in June 1999 because Timeline claimed that Microsoft didn't have the sublicensing rights. See the Microsoft PressPass article at http://www.microsoft.com/presspass/press/1999/jul9 9/timelinepr.asp for additional information about the suit Microsoft filed against Timeline. In December 2002, the Seattle Supreme Court ruled in favor of Timeline on this matter.

... that it is you who do not understand how patent law works. Anybody using a patented "algorithm" can be sued for patent infringement.

Furthermore, Microsoft cannot grant indemnification from patent lawsuits to their customers; only the patent holder and the government (since they grant the patent in the first place) can do that; the only thing Microsoft can do is provide patent lawsuit insurance to the buyers of their products, and I d

You have reached the heart of the problem, but have it backwards because you don't understand how the law works. If Microsoft infringes upon someone else's patent then _Microsoft_ is responsible for satisfying the patent holder and for providing the same or equivalent product to the customer. If some bozo check in some Linux code that is later found to violate a patent then the city of Munich is responsible (because they have no indemnification from the software provider.)

If Microsoft infringes upon someone else's patent then _Microsoft_ is responsible for satisfying the patent holder and for providing the same or equivalent product to the customer

However, the customer still faces the problem that they can't run the software. Either they have to negotiate a licence with teh claimant, who is likely to squeeze them for all they can, or pull the plug on various systems till tey can find a replacement.

some Linux code that is later found to violate a patent then the city of M

I'm curious what makes you think that purchasers of Windows or Solaris are automatically indemnified. All the Sun and MS licenses that I have seen state that the software is offered AS-IS with NO WARRANTY for any purpose including merchantibility or fitness for any purpose.

Are you suggesting that if I pay for GPLed software that I would receive the same protection? Or that if I was given proprietary software for free that I wouldn't be indemnified? Or is it only the combination of proprietary, paid for tha

MS software wouldn't be immune, but would be safer--they do have a lot of patents out there, are likely somewhat more cautious about stepping on patents, and (most importantly!) have significant financial and legal resources at their disposal to fight patent disputes.

MS software wouldn't be immune, but would be safer--they do have a lot of patents out there, are likely somewhat more cautious about stepping on patents...

MS has been sued for patent infringement and lost multiple times in the past, in at least one case where they blatently appropriated technology that had been revealed under a non-disclosure agreement.
However, I agree that their software would be somewhat more immune.
But that would be because it is closed source, and except where an API must revea

Microsoft has enough money to buy off the patent holder, either by licensing, cross-licensing, buying up all stock and closing down shop, or otherwise acquring the patent.

Huh? Do you know how much money MS has paid out for patent violations? Just recently MS lost a patent case over IE to Eolas. If MS could or would do what you suggest, why didn't they do that with Eolas? Why didn't they do that for all the other cases instead of paying out millions upon millions?

City of Münich may not have the ability to be able to spend that much of tax payers money on licensing.

But they may have the power to say "either you licence this to us for free or you do no business here". Failing that the German Federal Government is perfectly capable of saying "You have no patent (in Germany)."Patents only have meaning in the first place because Governments say they have meaning.

A state implementing a patent system forbids individuals to develop and market their inventions, unless those inventions happen to not be covered by any patents, which is extremely rare in certain industries. This is presumably done for the benefit of society -- to "promote the progress of science and the useful arts".

Giving people the unconditional freedom to develop and market their inventions (i.e. abolishing patent, trademark, and copyright laws, as well as environmental and consumer protection laws

Well, Microsoft made the gesture of idemnifying [computerweekly.com] their customers, so you could say that Windows users are safe.

In a sensible world, this would be tantamount to selling insurance against an invasion by Martians, but things being what they are who knows? The SCO suit against Autozone, last I heard, was stayed pending the outcome of SCOs case against IBM, rather than being completely thrown out as utter nonsense, so perhaps there's some legal theory under which using a product makes you liable for the action

Closed source is better for patent-threatened users because there are contracts in place and because of "fitness for use" laws. I can't speak about Germany, but in the USA if you sell me something and it violates somebody else's patent, you need to make things right for me. And if "you" are some large company, making it right can involve patent cross-licensing and no cash changes hands. Outfits like Microsoft, Sun, HP, and IBM do that all the time.

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities. There aren't any warranties, and there's no implied fitness for use. If Open Source software violates somebody's patent, it may be possible for them to sue you for infringement. They can certainly sue you to require you to "destroy" your copies of that software.

The difference is that the Windows license doesn't preclude you from coming to agreement with the patent holder.

The GPL does not preclude you from coming to an agreement with the patent holder.

Basically if it's patented, it can't be distributed under the GPL.

False. You just need the proper permississions from the patent holder.

So as I pointed out, there's no difference. Windows distributers or users are no more and no less illegal than GPL distributors or users for infringing a patent.

The whole thing should be moot anyway. The US fscked up in voiding the Mental Steps doctrine (prohibiting patents for 'mental steps' including calculations and software). There is no such thing as a 'computer implemented invention'. The only thing a computer can implement is a calculation, all software is nothing but a fancy math equation. Any sofware can be run mentally (albit quite slowly). It is absurd to suggest that a sequence of thoughts running that software could ever be a patent infringment, and there is absolutely nothing novel or non-obvious about using an ordinary computer to do it faster.

I am a programmer, a software author. I am protected by copyright. Why should software be the only thing on earth with double protection? Double protection is just broken. Issuing patents on what amounts to mental steps is just broken.

The part your missing is that the GPL expressly forbids the distribution of software if there is a patent encumbrence. While you're correct that I can make an agreement with the patent holder, that doesn't change the fact that I cannot legally use the GPL'd software even if I have a copy and a right to use the patented work.

The problem is that unless the author of the software a) adds an exception clause to their work excluding the patent clauses, b) acquires a right to use the patented work, or c) relice

In the US thus far SW-pats are rarely enforced. If the EU rejects SW-pats and there is a SW-patent enforcement flare up in the US - especially if it invloves open source software - then what happens? For one thing a huge amount of software development will flee the US to the EU, both proprietary companies and open source. It will also then be infringment for US companies to use almost any software at all.

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities.I'm no lawyer, but as far as I know, I don't believe this has ever been tested in court. So don't go spreading those kinds of statements around like they're gospel truth. There are a couple issues: One is a question of where the liability would fall in the case of a legitimate lawsuit. The other is whether software patents would even stand up to serious constitutional scrutiny.

Is it not true that Microsoft's EULA basically says that the most you are guaranteed is getting your money back with the return of the product? Is so, there is no real difference with open source software. And indeed, it can be argued that it is worse with MS's since you would then be in the position of not having the software to access data that is most likely in some proprietary format.

Don't know where you got that legal theory, but it doesn't seem to supported by evidence. Certain end users of msft sql server were sued because of mfst's patent violation. I've never of heard of that happening with FOSS.

There isn't any implied fitness for use or any kind of warranty in ALL the commercial software I have EVER used. In fact every EULA I have ever read removes as _much_ as possible any legal recourse somebody could take against the manufacturer of said commercial software.

One great example is the lawsuit that happened between Timeline and Microsoft over an alleged patent violation. Timeline claimed all SQL Server customers were on the hook for their patent: according to Timeline's summary of the decision [timeline.com]:"

Open Source is great, but as the licenses make clear, *you* wind up holding all the liabilities. There aren't any warranties, and there's no implied fitness for use.

And this is different in what way from Microsoft Windows? This is an exerpt from the Windows XP EULA:

Except for the Limited

Warranty and to the maximum extent permitted by applicable

law, Microsoft and its suppliers provide the Product and

support services (if any) AS IS AND WITH ALL FAULTS, and

hereby disclaim all other warranties and conditions, either

express, implied or statutory, including, but not limited

to, any (if any) implied warranties, duties or conditions

of merchantability, of fitness for a particular purpose,

of reliability or availability, of accuracy or completeness

of responses, of results, of workmanlike effort, of lack

of viruses, and of lack of negligence, all with regard to

the Product, and the provision of or failure to provide

support or other services, information, software, and

related content through the Product or otherwise arising

out of the use of the Product. ALSO, THERE IS NO WARRANTY

OR CONDITION OF TITLE, QUIET ENJOYMENT,

QUIET POSSESSION, CORRESPONDENCE TO

DESCRIPTION OR NON-INFRINGEMENT WITH

REGARD TO THE PRODUCT.

Basically what MS warrants is that if the media is scratched or it or the packaging are otherwise defective, or through defect Windows is not able to boot to a state in which your machine is able to perform its basic functions, then you are entitles for a replacement or refund within 90 days.

Beyond that any other warranty depends on how much warranty coverage your juristiction can force Microsoft to provide by law, or in the case of corporate customers on what is covered in a supplimental contract. In the case of legally minimum warranty I am now aware of ANYWHERE in the world that legally forces a vendor to indemnidy its customers from legal action involving patents. However, end users generally are not the target of patent violation cases--patent holders go after the manufacturer/vendor instead (even SCOs cases against Autozone and DaimlerChrysler don't involve patents--and they even skirt around copyright. They are basically contract disputes based on shaky ground).

In any case, Microsoft provides NO MORE WARRANTY than any Linux distributor might for a retail box or ISO download of their product. That being said, a major corporate or government enterprise would negotiate a special contract with the vendor.

In the case of the Munich Linux project, I cannot see how the city of Munich could be stuck with an order to suddenly stop using their software. The worst case scenario would be that the firms contracted to do the project (IBM and Novell) could be told to cease-and-desist Linux operations, which would delay the project or disrupt future expansion or support. I imagine that this would be handled by the contract between the city and IBM/Novell. A big enterprise customer generally is VERY through when it comes to risk management.

They can certainly sue you to require you to "destroy" your copies of that software.

Whatever the details, I've NEVER heard of a case where end users were ordered to destroy ANYTHING because it violates a patent. Could you give an example where, say, not only Red Hat would be ordered to stop distributing a software product due to patent violations--all its customers would be ordered to stop using the product too?

That would be like General Motors suing an aftermarket parts supplier for producing illegal replacement parts for Chevrolet Malibus and be granted the authority to send all registered owners of Malibus court orders to take their cars into dealers for examination and possible replacement of the parts. Such a remedy would be considered ridiculous.

In any case, Microsoft provides NO MORE WARRANTY than any Linux distributor might for a retail box or ISO download of their product. That being said, a major corporate or government enterprise would negotiate a special contract with the vendor.

Click here [law.com] to read about a patent case involving Rockwell and a lawsuit generating company called Solaia. They decided to go after Rockwell's costomers and not just Rockwell. The customers sued Rockwell and Rockewell is now going after the Solaia's lawfirm for making the suit. This thing makes the SCO case look like a picnic, but in this case only proprietary software and technology and licensing is involved. Now of course these end-users are actually big corporations like Clorox and Shell which is probably one reason the suits were filed. I have not heard of patent suits where customers at a department store or mall get sued for their purchase, but do not rule out that possibility. It could happen. The point is using proprietary systems and licenses with big corporations does not put you in the clear of liabilities.

Is Closed Source better just because it's harder to *know* when you steal?

First of all, patent infringement is not stealing, so refrain from using that silly, emotionally-loaded misnomer. Secondly, it's hard to *know* about patents regardless, whether the software is open of closed. Most patent infringement occurs accidentally. It's not like copying somebody's elses code -- where you know you didn't write it yourself. If you try to analyze any given piece of open or closed software, it will take you years of professional research to determine whether it bumps into any patents. Having the code doesn't even usually matter because most patents cover tiny aspects or nuances of functionality. This is why software patents themselves are so bogus -- they are all, by definition, trivial. In fact, they're so trivial that it's usually hard to even find them! (hence the term "patent minefield") The state of the art in software is advanced by millions of trivial, evolutionary steps forward. None of those steps deserve monopoly rights.

Anything that makes politicians sit up and think about the horrors of patents in today's world is good.

The danger of course is that they'll think for 3 seconds only, and conclude that they need proprietary software instead of free, since its manufacturer then picks up any liability for royalties.

In contrast, if they could be made to think for just a little bit longer, they might realize that patents would only a problem in this case if they remained hidden underwater and surfaced later when profits were smelled. That would be easy for a government agency to counteract in advance, since politicians are singularly well placed to force patent holders to register claims by a specific date to assist in government planning. This would flush submarines up very nicely.

Submarining is truly the main evil with patents, since it prevents people from planning ahead to avoid liabilities, as well as feeding the parasitic squatter instead of the inventors. If patent holders lost the ability to claim royalties when they remained hidden, much of the problem could be averted.

The moment Germany caved on Software Patents [ffii.org] they ensured that free software would require licenses simply to continue to exist and be compatible with any commercial software.

Hence, any government (e.g. Munich) hoping to use open source or free software will eventually be unable to do so and still retain compatibility with common commercial software. It's a foregone conclusion.

Case in point: Samba. It's only a matter of months before Microsoft uses patents to kill Samba and all similar communications compatibility with Open Source software. How will this affect Munich?

I really do hope this brings the German delegation to the EU back to their senses, but I fear it's too late.
By the way, the ffii site seems to be down. Anyone know why?

It's not more vulnerable with respect to legal matters. It might be financially more vulnerable though as opensource projects can't afford to fend themselves even against bogus patent claims. Open sorce projects often have less patens to use for cross licencing.

In many European countries the situation is somewhat better than in the US as the loosing part in a trial pays the legal fees for both parties. That might make it less tempting to make bogus patent claims.

Patents refer to the algorithm by which something is done. I believe you are referring to copyright, which is the letter of how something is done. For copyright violations, a developer can simply look at a spec and re-implement it without looking at the original. For patent infringements, a different algorithm must be found.

The OSS community has historically chosen to ignore trivial software patents as much as possible. If this were not the case, KDE applications wouldn't make use of patented technology like progress bars, tabs and Undo/Redo functionality.

On the one hand, there is an inherent incompatibility between software patents and FOSS: it is impossible for a FOSS developer to get a license for a software patent based on a per copy license fee, because he simply cannot know how many copies are out there. Therefore, most RAND licenses are simply unavailable to FOSS.

Otoh, it's certainly true that closed source is just as vulnerable in most cases, as long as it's produces by an indepen

I've never really understood the practicality of software patents. With closed source, a patent holder usually can't check the code to see if the software is infringing. With open source, it might be easier to tell, but there's less likely to be revenue to collect "damages" from. Is there a point to software patents?

"I've never really understood the practicality of software patents...Is there a point to software patents?"

Yes - they extend the enervating, tentacular reach of Lawyerdom yet further into the lives of ordinary people going about there ordinary business. Law and lawyers were established to protect the freedoms and rights of men from the ill effects of overweening military and financial might, to serve the public interest and maintain some semblance of justice in the World. The purpose of law has long since

It's almost purely strategic use. Software patents are indeed generally not used to protect investments in the patented algorithms, but to keep the competition out of the marketplace. Conversely, you can also use them to avoid having a competitor pulling that trick on you, by cross-licensing your patents against his'. That's only a viable option for large companies, however.

You might also be interested in the testimony of Robert Barr [ftc.gov] (word doc) (VP at Cisco and their head of intellectual Property) at the

Note the last paragraph: "Protection of industrial property is not an end in itself: it is a means to encourage creative activity, industrialization, investment and honest trade. All this is designed to contribute to more safety and comfort, less poverty and more beauty, in the lives of men."

And consider how FOSS supports that better then what MS has been proven to contridict that, in courts around the world.

I agree with what erroneus(253617) implied, even if it wasn't serious.I think that the Green's intent was precisely to stimulate the reconsideration of the patent issue, in the hope of weakening or reversing the patent decision.

The TechWeb article is basically correct except that I'm independent and not a general spokesperson for the Green Party other than working with them (and others) on software patent issues.

Here's the text of the original announcement:

EU Software Patents Jeopardise Munich's Linux Migration

MUNICH, Germany, July 30/PRNewswire/ -- When the city administration of Munich decided to migrate its IT infrastructure to the Linux operating system, it made headline news around the world. That project is now being

In reading some of the replies here, I see that many people figured this out and some were confused due to the fact that indirect reports on something can easily be misunderstood.

The FFII (www.ffii.org, just that the website is inaccessible while I am writing this) identified more than 50 conflicts of the Linux "base client" of the city of Munich (from their migration feasibility study) with software patents that had been granted or are about to be granted by the European Patent Office.

For some background information: The European Patent Convention of 1974 does not allow software patents. It excludes program logic from patentability. The European Patent Office has been granting software patents anyway (in fact, about 30,000 already), and now the European Union wants to take a decision on the patentability of program logic. That decision could go in any of three directions:

legalize software patents all the way (that's what some of the EU institutions want, and it's the will of the governments of Germany, UK, France, Sweden and other countries)

abolish software patents entirely (that's what the European Parliament voted for in September of 2003, and that would be best)

continue with status quo (which means that the situation remains unclarified for now... that would not be ideal but still infinitely better than legalizing software patents in the EU)

What the Greens want is for governments such as the German one to consider the implications of software patents to their own IT strategies. It's not just that the city of Munich migrates to Linux. There is a "Migration Guide" book that was published by the German Federal Ministry of the Interior, and in that migration guide they tell, in no uncertain terms, every public administration in Germany that they should migrate to open source as fast and as much as they can. That type of recommendation is reduced to absurdity by simultaneously supporting software patents, which in the opinion of Linus Torvalds, Alan Cox and many other developers are the ultimate threat to Linux.

The European governments have a simple decision at hand: Do we want a competitive environment in which open source and small and medium-sized enterprises can present every purchaser of software (governmental agencies, enterprises, private households) with alternatives? Or do we want an oligopolistic market in which only a few powerhouses cross-license thousands or tens of thousands of patents at a time, and can at their choosing leverage those patents against their competition?

It's another question whether open source is more endangered by software patents than closed source. For the most part, everything that is bad about software patents simply applies to open source as well, just that FOSS is particularly successful at breaking into monopolistic and oligopolistic markets (as the Linux migration project of Munich shows). What comes on top of all of this is that access to source code makes it easier to identify and substantiate patent infringement assertions. In my opinion, that open-source-specific aspect is not nearly as important as the fact that FOSS is a strong competitor to various patent powerhouses.

Generally, software patents simply make software development hugely more expensive. Without software patents, you need to know how to program, you purchase a computer for maybe $1,000, and you can contribute to an open source project. With software patents, you need to play that absurd cross-licensing game, and you can't do that without thousands or tens of thousands of patents, which in turn means that unless you're a multi-billion $ organization, patents are only a risk to you and no protection at all.

Thank you for your posts - they are clear and informative. What puzzles me most is the huge support of swpats by the comission, or rather the technocrats who are responsible for what is going on there. I would have thought that it is a reflection of the majority of conservative and neo-liberal governments, but even Germany is pro - how can the pro swpat lobbying be that effective? It seems to be so obvious that the only way for EU to compete is exactly to find an alternative to the monopolist (like they did

The EU legislative process involves three different bodies (EU Parliament, EU Commission, EU Council) but the two latter ones are pretty much the same on the swpat issue.

It is interesting to observe that democratically elected representatives of the people have so far taken anti-swpat positions: The European Parliament on 09/24/03 and the Dutch "Tweedekammer" on 07/01/04. However, the EU Commission and the so-called "Working Party" (a committee of civil servants basically) of the EU Council are pro-swpat.

There are three reasons why this is so:

Those civil servants on the patent workgroup of the Council are typically the national patent administrators. They are senior civil servants and some of them are on the controlling board of the European Patent Office. They don't need a pro-patent lobby to lobby them. They ARE a pro-patent lobby themselves. Those people believe that patents are the greatest blessing that has ever been given to mankind, and their own influence and career is linked to the patent system in one way or another.

Large corporations such as Siemens, Ericsson, Nokia, ABB, Bosch and others aggressively push the national governments of the EU member states for swpats. They might pay dearly for that in the end because they aren't really good at making patentable "inventions" in the software space but they believe it just benefits the large companies and they can then cross-license with the other big guys. Those European corporations basically do the lobbying job for the American large corporations that want those swpats even more but can't take as visible a position in the European debate as they'd like to (they do it indirectly through industry associations that they have hijacked, such as BITKOM in Germany). The political influence of those European corporations is huge. If the CEO of Siemens wants to talk to the chancellor (head of government) of Germany, he probably just calls him directly on his cellphone.

There are many companies, particularly software companies (not only in open source!), of small and medium size, which should be concerned over this political development and should collectively run a forceful campaign. Swpats will never be the mainstream political topic that, for instance, the war on Iraq is, but if properly presented, it can be a significant topic. After all, every public administration, virtually every enterprise and a vast majority of all households needs software. However, the management of most SMEs is too unsophisticated in political terms. I'm now making an effort to get some of them to figure this game out. Unless they are ready to join the fray and do something impactful (which is not just minor things like writing open and non-open letters to politicians), they'll lose out all the way. SMEs typically think that they should only focus on their core business and shouldn't ever spend management time, let alone money, on the political front. Large corporations are typically much smarter in that regard (they not only have more resources, they also do understand that politics are a business priority). The shortsightedness of most small and medium-sized companies in this respect is stunning.

It's nothing short of remarkable how successful the FFII and other anti-swpat activists in Europe have been under those circumstances, without a substantial amount of funding!

Here's the EU situation. They want to clarify and sort of supersede the European Patent Convention of 1974.

The initiative at the level of the European Union started in 1999 when the European Commission started to look into this.

On 02/20/02, the European Commission formally proposed a "Directive on the Patentability of Computer-Implemented Inventions", totally pro-swpat.

On 09/24/03, the European Parliament said No but in a very smart way. Instead of just turning it down, they simply amended it to the effect that it was turned around by 180 degrees. They turned a pro-swpat directive into an anti-swpat directive.

It then went to the EU Council, which is the representation of the EU member states. That's where the responsibility of the government of a country like Germany comes in. On May 18 of this year, the EU Council reached a "political agreement" on a pro-swpat directive. Basically they dropped the essential amendments of the EU Parliament, went back to the text of the Commission, and even went beyond by particularly allowing "program claims". So the EU Council came up with the most terrible legislation of swpats that anyone in the EU has proposed to date.

Now, the press reported on that May 18 thing as though it were a final decision. It's not final at all. It was not a formal vote on May 18, just a tentative vote. The formal decision is now expected to occur on September 24, and in the meantime, the Dutch parliament has made a resolution that the government of the Netherlands should abstain. On May 18, they were in support of swpats, so technically there is no more majority right now but the EU Council procedure is such that the May 18 thing might be passed without a vote (just by no one protesting... they call that an "A item", adopted without debate). Every country that supported swpats on May 18 could still change its mind, including Germany. It's just that they usually don't do that because it would violate an unwritten code of diplomacy. The whole idea behind this "A item" thing is that they want the civil servants of the national governments to work out as many things as possible so that the ministers, who the Council is formally composed of, don't have to deal with each and every issue. The EU passes thousands of laws and regulations every year and the fewest are sorted out by the ministers.

Even if the EU Council were to pass its May 18 pro-swpat directive, that legislation would still not take effect. It would go back to the EU Parliament, and then there is so much that can happen in procedural terms that I'd better stop it for now and let's talk about this if and when we get there:-)

People are incredibly ignorant. They allow an autocratic EU state to build, develop, and continually assume that everything will be ok.

I should not reply as you are a Troll.

Yet to a large section of especially the British public you sound credible.
Believe it or not but it is an unholy alliance of the British and French that has till now prevented the European Parliament to get the power a Parliament needs.

Ofcourse all in the name of "Sovereignty" of the National Parliaments/Governements.
But in reality